In Re BS

74 P.3d 285, 205 Ariz. 611
CourtCourt of Appeals of Arizona
DecidedAugust 19, 2003
Docket1 CA-JV 03-0028-AB
StatusPublished

This text of 74 P.3d 285 (In Re BS) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re BS, 74 P.3d 285, 205 Ariz. 611 (Ark. Ct. App. 2003).

Opinion

74 P.3d 285 (2003)
205 Ariz. 611

In the Matter of B.S., a minor.

No. 1 CA-JV 03-0028-AB.

Court of Appeals of Arizona, Division 1, Department E.

August 19, 2003.

*287 Carol Coghlan Carter, Gold Canyon, Attorney for B.S.

OPINION

TIMMER, Judge.

¶ 1 This appeal presents our first opportunity to consider the application of Arizona Revised Statutes ("A.R.S.") section 36-2152(B)-(F) (2003), Arizona's "judicial bypass" provision, which prohibits a person from performing an abortion on an unemancipated minor without first securing written consent from her parent, guardian, or conservator, unless the superior court authorizes the attending physician to perform the procedure.

BACKGROUND

¶ 2 On Friday, March 7, 2003, sixteen-year-old B.S., who believed she was eight and one-half weeks pregnant, filed a petition in the juvenile court pursuant to A.R.S. § 36-2152(B) seeking authorization for an abortion without permission from her parent or guardian. Pursuant to § 36-2152(B) and (E), the juvenile court held a hearing on Monday, March 10, to consider B.S.'s petition. At the conclusion of the hearing, the court announced its decision to deny the petition, which was memorialized in a written order filed the next day.

*288 ¶ 3 On March 11, B.S. filed a motion for reconsideration of the court's order. At the commencement of a hearing on the motion that same day, however, B.S. withdrew her motion, stating her intention to immediately appeal the juvenile court's order. Later that day, B.S. filed a petition for appellate review.

¶ 4 We heard oral argument on the petition on the morning of March 12, and then issued an order that afternoon affirming the juvenile court's ruling. In our order, we stated that a detailed written disposition fully explaining our decision would follow. This opinion provides that explanation.[1]

STANDARD OF REVIEW

¶ 5 We review the court's interpretation of § 36-2152(B) de novo as a question of law. Energy Squared, Inc. v. Arizona Dep't of Revenue, 203 Ariz. 507, 509, ¶ 15, 56 P.3d 686, 688 (App.2002). However, giving due regard to the court's opportunity to assess witnesses' credibility and demeanor, we will set aside factual findings only if they are clearly erroneous. In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5, 12 P.3d 1203, 1205 (App.2000). A finding is clearly erroneous if no reasonable evidence supports it. Audra T. v. Arizona Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App.1998) (citation omitted).

DISCUSSION

¶ 6 B.S. argues the juvenile court erred by improperly applying A.R.S. § 36-2152(B). Before addressing B.S.'s specific contentions of error, we generally examine the judicial bypass procedure to establish a context for our decision.

I.

¶ 7 Like her adult counterpart, a female minor possesses a constitutionally protected right to choose whether to terminate her pregnancy. Planned Parenthood v. Danforth, 428 U.S. 52, 72-75, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Supreme Court had held, however, that a state may require parental consent to a minor's abortion decision as long as the state provides an alternative, judicial bypass procedure. Bellotti v. Baird, 443 U.S. 622, 643, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (commonly known as "Bellotti II"). The minor is entitled in such an alternative proceeding to show either (1) that she is sufficiently mature and well-informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes, or (2) that if she cannot make the decision independently, an abortion would serve her best interests. Id. at 643-44, 99 S.Ct. 3035.

¶ 8 Following Bellotti II, Arizona enacted successive versions of a parental consent statute with an attendant judicial bypass procedure. A.R.S. § 36-2152, Historical and Statutory Notes.[2] The provisions are currently codified in A.R.S. § 36-2152. Pursuant to § 36-2152(B), after "an appropriate hearing" the court must authorize a physician to perform the abortion if the court determines the pregnant minor is both "mature and capable of giving informed consent to the proposed abortion." A.R.S. § 36-2152(B). If the court finds that the minor lacks maturity, or if the minor does not claim to be mature, the court must then determine whether the performance of an abortion without consent by a parent, guardian, or conservator would be in the minor's best interests. Id. If so, the court must authorize the abortion. Id.[3]

*289 ¶ 9 The legislature did not specify who bears the burden of proving the circumstances set forth in § 36-2152(B). The United States Supreme Court has held that states are not required to prove the issues of maturity and best interests in proceedings to judicially bypass parental consent requirements. Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 515, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (commonly referred to as "Akron II"). Thus, we follow our general rule that the party asserting the affirmative of an issue bears the burden of proving it. John E. Shaffer Enter. v. City of Yuma, 183 Ariz. 428, 431, 904 P.2d 1252, 1255 (App.1995) (citation omitted). Because that person in a judicial bypass proceeding is the pregnant minor, she bears the burden of proof. See In re Petition of Anonymous 1, 251 Neb. 424, 558 N.W.2d 784, 787 (1997) (holding pregnant minor has burden to prove entitlement to judicial bypass in absence of legislative pronouncement to contrary); see also In re Anonymous, 833 So.2d 75, 78 (Ala.Civ.App. 2002) (acknowledging minor bears burden of proof in judicial bypass proceeding); In re Doe 4, 19 S.W.3d 337, 339 (Tex.2000) (same).

¶ 10 The legislature also did not specify the standard of evidentiary proof required under § 36-2152(B). Although "preponderance of the evidence" is the standard typically employed in civil cases, Rasmussen v. Fleming, 154 Ariz.

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Related

Prince v. Massachusetts
321 U.S. 158 (Supreme Court, 1944)
Roe v. Wade
410 U.S. 113 (Supreme Court, 1973)
Bellotti v. Baird
443 U.S. 622 (Supreme Court, 1979)
Ohio v. Akron Center for Reproductive Health
497 U.S. 502 (Supreme Court, 1990)
Troxel v. Granville
530 U.S. 57 (Supreme Court, 2000)
RUVALCABA BY STUBBLEFIELD v. Ruvalcaba
850 P.2d 674 (Court of Appeals of Arizona, 1993)
Rasmussen by Mitchell v. Fleming
741 P.2d 674 (Arizona Supreme Court, 1987)
State Ex Rel. Lassen v. Harpham
410 P.2d 100 (Court of Appeals of Arizona, 1966)
First Phoenix Realty Investments v. Superior Court
841 P.2d 1390 (Court of Appeals of Arizona, 1992)
Cohen v. State
588 P.2d 299 (Arizona Supreme Court, 1978)
In Re Anonymous
833 So. 2d 75 (Court of Civil Appeals of Alabama, 2002)
H___ B___ v. Wilkinson
639 F. Supp. 952 (D. Utah, 1986)
In Re Doe 4
19 S.W.3d 337 (Texas Supreme Court, 2000)
In Re Petition of Anonymous 1
558 N.W.2d 784 (Nebraska Supreme Court, 1997)
Energy Squared, Inc. v. Arizona Department of Revenue
56 P.3d 686 (Court of Appeals of Arizona, 2002)
John E. Shaffer Enterprises v. City of Yuma
904 P.2d 1252 (Court of Appeals of Arizona, 1995)
Audra v. Arizona Department of Economic Security
982 P.2d 1290 (Court of Appeals of Arizona, 1998)
Johnson v. Davis
12 P.3d 1203 (Court of Appeals of Arizona, 2000)
In re B.S.
74 P.3d 285 (Court of Appeals of Arizona, 2003)

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Bluebook (online)
74 P.3d 285, 205 Ariz. 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bs-arizctapp-2003.